DECISION AND ORDER
Petitioner Worlklis Luna Aponte (“Petitioner”) is a native and citizen of the Dominican Republic, who has been administratively ordered to be removed from this country because of his criminal activity. Petitioner is seeking judicial review of his removal order by the United States Circuit Court of Appeals for the Second Circuit. In the meantime, Petitioner, whose deportation has been effectively stayed pursuant to an agreement between the Attorney General and the Second Circuit Court of Appeals, has remained in civil detention for approximately 39 months, without a bond hearing. Pursuant to 28 U.S.C. § 2241, Petitioner contends that such detention violates his rights under the Immigration and Naturalization Act (“INA”) and the Due Process Clause of the Fifth Amendment to the United States Constitution. For the reasons that follow, the petition is denied.
In or about 1993, Petitioner entered the United States as a lawful permanent resident alien. On September 20, 2006, Petitioner was convicted, in New York State Supreme Court, Kings County, of Criminal Possession of a Controlled Substance in the Fifth Degree, a class D felony, in violation of Penal Law § 220.31, and sentenced to eighteen months in state prison.
On November 21, 2006, the U.S. Department of Homeland Security (“DHS”) charged Petitioner with being subject to removal from the United States as an alien convicted of a controlled substance offense, pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)®, and as an alien convicted of a drug trafficking crime, pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2) (A) (iii). While this removal procеeding was pending, Petitioner filed an application in New York State Supreme Court, New York County, to have his conviction under Penal Law § 220.31 set aside, on the grounds that his attorney failed to provide him effective assistance, by failing to explain to him that his guilty plea could result in deportation. Petition at p. 4. 1 Petitioner requested that his removal proceedings be stayed pending the outcome of that application. However, on May 3, 2007, an Immigration Judge (“IJ”) ordered that Petitioner be removed from the U.S. on both of the grounds charged. On May 13, 2007, Petitioner was released from the custody of the New York State Department of Correctional Services (“DOCS”), and taken into custody by the DHS. Petitioner appealеd the IJ’s order, on the grounds that the IJ should have stayed the removal proceeding, pending the outcome of his application to have his conviction vacated. However, on July 20, 2007, the Board of Immigration Appeals (“BIA”) dismissed the appeal.
On September 5, 2007, Petitioner filed an untimely appeal with the United States Circuit Court of Appeals for the Second Circuit. (Case No. 07-3796-ag). Although Petitioner does not indicate the basis for the appeal, it appears that he is again claiming that the IJ should have stayed his removal proceedings pending the outcome of his application to vacate his conviction in New York State Supreme Court. Petition at p. 6; BIA Appeal. Petitioner also filеd a motion for a stay of removal, which the Second Circuit has never granted or denied. Petitioner’s deportation, though, has been effectively stayed nonetheless, pursuant to a standing agreement (“the forbearance policy”) between the United States Attorney General and the Second Circuit. See, Affidavit of Donald J. Vaccaro, Jr. at ¶ 17 (“Luna-Aponte’s case is subject to an agreement between DHS and [the Second Circuit] which provides that DHS will not remove any alien who has requested a stay of removal with a petition for review of an immigration order of removal, unless a government motion opposing the stay is granted by the court or the alien’s stay motion is otherwise denied.”).
Respondent filed a mоtion with the Second Circuit, to deny the appeal as untimely, and to deny the motion for a stay. The Second Circuit directed the parties to brief the threshold jurisdictional issue of whether dismissal of the petition would violate the Suspension Clause of the United States Constitution. In that regard, the Second Circuit consolidated Petitioner’s case with several other cases raising the same issue, and appointed counsel to represent Petitioner. The briefing schedule was extended several times, and the Circuit Court has not yet issued a decision.
Additionally, DHS has conducted periodic reviews of Petitioner’s custody status. Specifically, DHS conducted such reviews in October 2007, October 2008, and October 2009. 2 The reviews consisted of an examination of Petitioner’s file by a DHS employee. Following each such review, DHS notified Petitioner thаt it would continue his detention, since, if he was released, he would pose a threat to the community and would also pose a risk of flight. With respect to this, DHS stated that Petitioner had two criminal convictions, one in 2006, for Criminal Sale of a Controlled Substance in the Fifth Degree, and one in 2001, for Robbery in the Third Degree. 3 As to the robbery conviction, DHS stated that Petitioner was originally sentenced to probation, but violated probation, and was resentenced to six months’ incarceration. DHS further stated:
The nature of your crimes demonstrates a pattern of disregard for the laws of the United States. You have also shown an inability to conform to the rules of society, exemplified by your violation of the conditions of your probation, making you a flight risk. In addition, your promotion of illegal drugs on the streets in the community poses a significant threat to community members and their children.
Petitioner maintains that the custody reviews in 2008 and 2009 did not provide him with appropriate procedural safeguards as required by 8 C.F.R. § 241.4. For example, Petitioner contends that he was denied the opportunity to present his case in 2009, since he was given notice of the custody review the same day that it occurred. Petitioner also states that DHS placed too much emphasis on his criminal history, while ignoring the fact that he has never received a misbehavior report while in custody of either DOCS or DHS. Petitioner further states that DHS failed to consider that he has relаtives residing lawfully in the U.S. Petitioner contends that DHS’s review process was inadequate, because it did not provide an individualized hearing by a neutral decision-maker, improperly
On January 15, 2010, Petitioner commenced this action. Petitioner contends that he is being detained pursuant to INA § 236, 8 U.S.C. § 1226, and that such prolonged detention, without an individualized bond hearing, violates INA § 236(c) and the Fifth Amendment Due Process Clause. Petitioner acknowledges that § 236(c) “requires the Attorney General to take into custody certain classes of criminal aliens, including aliens with convictions of the nature of Petitioner’s, and generally prohibits their release unless essential to a criminal investigation.” Petition at 10. However, he contends that in situations such as his, where the appeal process becomes prolonged, criminal aliens become entitled to bond hearings under INA § 236(a).
In support of his position, Petitioner cites,
inter alia, Demore v. Kim,
In opposition to the petition, Respondents deny that Petitioner is being held pursuant to INA § 236(c). Instead, Respondents contend that Petitioner is being detained under INA § 241, since no court-ordered stay of deportation was entered, and further contеnd that such detention is reasonable and proper, pursuant to
Zadvydas v. Davis,
Subsequently,
Amici Curiae
(“Amici”) submitted a brief on behalf of Petitioner. Amici state that Respondents have misunderstood the nature of Petitioner’s claim,
Luna-Aponte seeks release not because his removal is not ‘reasonably foreseeable’ under Zadvydas, but because his nearly three years of detention, without a constitutionally adequate bond hearing, violates his rights under both the INA and the Due Process Clause .... Luna-Aponte has never asserted that his claim is ripe under the Zadvydas standard.... The Supreme Court has never upheld prolonged civil detention of this length in the absence of a meaningful hearing before an impartial adjudicator where the governmеnt bears the burden of justifying continued imprisonment. Yet far from receiving such a hearing, the only process that Mr. Luna-Aponte has received is a string of perfunctory administrative custody reviews before the very agency adjudicators who are responsible for his detention, where he bore the burden of demonstrating lack of danger and flight risk, had no opportunity to examine or rebut the Government’s allegations, and had no appeal of the agency’s decision. This kind of review falls far short of what due process requires.
Amici Brief at 3-4. However, Amici maintain that the Court need not, and should not, address the constitutional issue raised, and should instead interpret “the immigration statute” “as authorizing pre-final order immigration detentiоn only for the period of time necessary to conclude removal proceedings[,] and as requiring a constitutionally adequate bond hearing whenever such detention becomes prolonged.” Id. at 5.
Amici insist that Petitioner is being detained pursuant to INA § 236, and not § 241, but that, in either case, he is entitled to a bond hearing:
[Bjecause Mr. Luna-Aponte’s removal order has been [effectively] stayed pending judicial review, the best reading of the statutory scheme is that his detention is governed by [INA § 236], 8 U.S.C. § 1226, the pre-removal order statute, and specifically the discretionary detention provision, § 1226(a), not the mandatory detention provision, § 1226(c). 5 Regardless of what statute applies, however, none of these provisions authorize Mr. Luna-Aponte’s unreasonably prolonged detention, at least in the absence of a constitutionally adequate bond hearing.
Amici Brief at 19.
Essentially, Petitioner asks the Court to construe the relevant portions of the INA and its regulations so as to avoid finding them unconstitutional. First, Petitioner asks the Court to find that he is being detained under INA § 236, even though there is no court-ordered stay in place, because DHS’s forbearance policy creates a “de facto stay of removal.” Amici Brief at 21. Moreover, even though Petitioner, as a criminal alien, clearly falls under the mandatory detention provision of § 236(c),
DISCUSSION
Petitioner brings this action pursuant to 28 U.S.C. § 2241(c)(3), which “authorizes a district court to grant a writ of habeas corpus whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of the United States.’ ”
Wang v. Ashcroft,
The Fifth Amendment’s Due Process Clause applies to aliens, “whether their presence here is lawful, unlawful, temporary, or permanent,” and this includes aliens subject to final orders of removal, “though the nature of that protection may vary depending upon status and circumstance.”
Zadvydas v. Davis,
Congress has clearly indicated, in the INA, that deportable criminal aliens such as Petitioner are to be detained during the pendency of their removal proceedings. See, 8 U.S.C. § 1226(c);
Demore v. Kim,
In
Demore v. Kim,
the Supreme Court held that mandatory detention of criminal aliens under INA § 236(c), during removal proceedings, is constitutional. In
Demore,
a deportable alien challenged his mandatory detention pending the outcome of his removal proceedings, on the grounds that 8 U.S.C. § 1226(c) violated the Fifth Amendment’s Due Process Clause. The alien argued, for example, that such mandatory detention was unnecessary, and that the government could instead conduct “individualized bond hearings.”
Id.,
The Supreme Court has also held that indefinite detention of a criminal alien, following the entry of a final order of removal, under INA § 241, would violate the Due Process Clause. In
Zadvydas v. Davis,
a group of criminal aliens subject to final orders of removal challenged their continued civil detention, under 8 U.S.C. § 1231(a)(6), after it became apparent that they could not be deported because no country was willing to accept them. The Court held that “indefinite detention” of such aliens “would raise serious constitutional concerns,” and it therefore “construe[d] the statute to contain an implicit ‘reasonable time’ limitation.”
Id.,
[T]he habeas court must ask whether the detention in question exceeds a period reasonably necessary to secure removal. It should measure reasonableness primarily in terms of the statute’s basic purpose, namely, assuring the alien’s presence at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized by statute. In that ease, of course, the alien’s release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and the alien may no doubt be returned to custody upon a violation of those conditions.
Id.,
once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of рrior postremoval confinement grows, what counts as the “reasonably foreseeable future” conversely would have to shrink.
Id. at 2505.
In the instant case, the Court finds, at the outset, that Petitioner is being detained pursuant to INA § 236(c), not INA § 241. Section 236 “governs the detention of aliens against whom the Government has initiated removal proceedings, but whose removal periods have not yet commenced.”
Wang v. Ashcroft,
The determination of when an alien becomes subject to detention under INA § 241 rather than INA § 236 is governed by INA § 241(a)(1). Pursuant to § 241(a)(l)(B)(ii), “[i]f the removal order is judicially reviewed and if a court orders a stay of the removal of the alien [pending review],” then the removal period begins on “the date of the court’s final order.” Accordingly, where a court issues a stay pending its review of an administrative removal order, the alien continues to be detained under § 236 until the court renders its decision.
Wang v. Ashcroft,
The issue before the Court, therefore, is whether Petitioner’s detention, under INA § 236(c), for more than three years, all of which time is attributable to his attempt to appeal his final order of removal, without a bond hearing, violates the INA and/or the Due Process Clause. The Court finds that it does not.
As discussed earlier, in
Demore v. Kim
the Supreme Court held that mandatory detention of criminal aliens under INA § 236, without a bond hearing, “for the brief period necessary for their removal proceedings” was constitutional.
Demore v. Kim,
Although, here, Petitioner’s detention has been far longer than five months, he has not shown that his continued detention is unreasonable or unjustified. Significantly, there is absolutely no impediment to Petitioner’s eventual deportation. If the Second Circuit decides Petitioner’s appeal adversely to him, there is nothing preventing him from being deported to the Dominican Republic.
9
In this regard, the instant case is distinguishable from
Ly v. Hansen,
[T]he district court determined that incarceration for one and one-half years as part of a civil, nonpunitive proceeding when there was no chance of actual, final removal, ivas unreasonable. We agree. As of the September 21, 2000 opinion and recommendation of the magistrate judge, Ly had been imprisoned for a year and a half with no final decision as to removability in the case. That decision as to removability was not made until nearly a month later, after the magistrate judge recommended granting the writ of habeas corpus. Ly served criminal sentences for his two convictions of a total of 12 months; he spent considerably more time than that in INS custody awaiting a determinаtion on removal.
Further, any detention under IIRIRA must be reasonably related to the goal of the statute. Zadvydas,533 U.S. at 699-700 ,121 S.Ct. 2491 . The goal of pre-removal incarceration must be to ensure the ability of the government to make a final deportation. The danger is that a criminal alien, upon receiving notice of deportation proceedings, will flee. The actual removability of a criminal alien therefore has bearing on the reasonableness of his detention prior to removal proceedings. Zadvydas,533 U.S. at 690 ,121 S.Ct. 2491 . Because Ly was not removable, a year-and-a-half imprisonment awaiting removal proceedings was especially unreasonable.
Id.,
Adler’s pre-removal detention has lasted fifteen months. This is more than twice as long as the maximum duration contemplated by the Demore Court. However, there is no evidence in the record that the government has dragged its feet. Every adjournment in Adler’s proceedings was upon Adler’s motion. Although it is Adler’s right to seek relief from deportation, the delays caused by his motions should not be attributed to the government.
Furthermore, Adler’s detention is not unjustified. As the Demore Court noted, a primary justification for mandatory detention under 236(c) is to prevent deportable aliens from fleeing. If an alien cannot be deported, this flight justification would be inapplicable. But Adler does not cоntest his deportability. The primary justification for detention under 236(c)-curbing the risk that a deportable alien will flee-therefore remains relevant to Adler’s case, and it cannot be said that his detention is unjustified.
Id.,
No. 09 Civ. 4093(SAS),
At this point Mr. Andreenko’s detention does not violate due process because there has been no showing that it was prolonged by the government nor that it is likely to last indefinitely or for a lengthy additional period of time, nor that his ultimate removal is improbable. The petitioner has explained that he “is in the process of filing [ ] 440 motions to vacate his 2005 controlled substance conviction in New York and his 2007 possession of marijuana conviction in Fredericksburg, [Virginia] .... due to Padilla v. Kentucky,” 599 U.S. ---,130 S.Ct. 1473 [,176 L.Ed.2d 284 ] (2010). (Pet. Letter at 1). However, the probability of the petitioner’s success in these planned attempts to vacate his previous convictions is speculative, and thus his likelihood of avoiding removal on this basis is too remote to warrant habeas relief.
Andreenko v. Holder,
No. 09 Civ. 8535(CM)(JCF),
Additionally, this is not a case where Petitioner faces indefinite detention, such as that faced by the aliens in
Zadvydas
and
Ly.
Much to the contrary, Petitioner can obtain his release to the Dominican Republic at any time. In
Zadvydas
and
Ly,
there was no country that was willing to accept the criminal aliens, and they therefore faced the prospect of permanent detention. Here, however, Petitioner is essentially remaining in custody voluntarily, rather than returning to the Dominican Republic and awaiting the outcome of his appeal there. In that regard, Petitioner sought a stay of deportation pending his appeal to the Second Circuit.
10
Under
Furthermore, as to Petitioner’s contention that he is entitled to an individualized bond hearing, pursuant to,
inter alia, Tijani v. Willis,
CONCLUSION
Accordingly, the petition is denied and this action is dismissed. Pursuant to 28 U.S.C. § 2253, the Court declines to issue a certificate of appealability, since Petitioner has not made a substantial showing of the denial of a constitutional right.
So Ordered.
Notes
. The record contains no further information concerning this three-year-old application, and it therefore appears that the application was denied.
. As discussed further below, DHS conducted such reviews because it maintаins that Petitioner's situation is governed by INA § 241, and specifically, by 8 U.S.C. § 1231(a)(6), which grants DHS discretion to release criminal aliens under certain circumstances. However, since Petitioner was, and is, actually being detained pursuant to INA § 236(c), which provides for mandatory detention of criminal aliens, he was not eligible for release.
. Prior to such custody reviews, in his BIA appeal, Petitioner represented that his conviction for Criminal Sale of Controlled Substance in the Fifth Degree was his "first and only conviction.” BIA Appeal at p. 1. However, in this action, Petitioner does not dispute that he was also previously convicted of robbery, or that he violated his probation. Instead, Amici Curiae refer to the earlier conviction, but dismiss it as “onе from nearly a decade ago for which he received a noncustodial sentence.” Amici Brief at 12. Amici do not address DHS's contention that Petitioner violated his probation, except to say that such violation does not necessarily "reflect[] on Mr. Luna-Aponte's current risk of flight.” Amici Brief at 17 (emphasis in original).
. Petitioner’s Traverse at 5-6 (‘'Petitioner has a substantial challenge to removal.”).
. INA § 236(c), 8 U.S.C. § 1226(c), “mandates detention during removal proceedings for a limited class of deportable aliens — including those convicted of an aggravated felony.”
Demore v. Kim,
.
But see, D’Alessandro v. Mukasey,
. To the extent that a reviewing Court may disagree, and find that Petitioner is being detained pursuant to INA § 241, this Court would nonetheless deny his petition, pursuant to Zadvydas, since he has not shown that there is no significant likelihood of his removal in the reasonably foreseeable future.
.
But see, Scarlett v. U.S. Dep’t of Homeland Security,
. Moreover, as mentioned earlier, Petitioner has not demonstrated how his appeal before the Second Circuit has merit.
. The fact that Petitioner's motion has not, to date, been granted, and that his deporta
. The Court recognizes that under INA § 236(c), which the Court finds is applicable, detention is mandatory. However, if Petitioner asked to have the stay dissolved, he would then be detained pursuant to INA § 241, and could be deported immediately. In making this observation, the Court in no way is suggesting that Petitioner should be '‘punished” for appealing to the Second Circuit. Rather, as the Second Circuit stated in
Doherty v. Thornburgh,
"[although [the alien-petitioner’s] litigation strategy is perfectly permissible, ... [he] may not rely on the extra time resulting therefrom to claim that his prolonged detention violates substantive due process.”
. As Petitioner admits, one of the cases upon which he relies,
Alli v. Decker,